1.In a petition submitted to the Inter-American Commission on Human
Rights (hereinafter “the Commission” or “the IACHR”) on November
3, 1997, Dr. Dionisio Gauto (hereinafter “the petitioner”) and Mr. Aníbal
Miranda, the alleged victim, claimed that the Republic of Paraguay
(hereinafter “Paraguay,” “the State,” or “the Paraguayan
State”) had violated Mr. Miranda’s human rights by subjecting him to
police harassment, illegal arrest, kidnapping, torture, the illegal
confiscation of his passport, and abuses of authority, all in connection
with publications dealing with crimes committed during the dictatorship
that Mr. Miranda released. They further claimed that none of the
perpetrators of those violations had been punished, even though criminal
proceedings had been ongoing since 1989, and that in a suit for damages
brought by Mr. Miranda against the Paraguayan State in 1997, his right to
due process and his right to a fair trial were violated. The State claimed
that the remedies provided by domestic jurisdiction had not been
exhausted. The Commission decided to admit the case and to continue with
its analysis of the merits.

II.PROCESSING BY THE COMMISSION

2.On April 9, 1998, the Commission opened the petition, transmitted
the relevant parts of the complaint to the Paraguayan State, and asked it
to submit information thereon within a period of 90 days. On May 29, 1998,
additional information was received from the petitioner. On September 24,
1998, the Commission asked the State to supply information within a period
of 15 days. The State responded on October 20, 1998. On December 21, 1998,
the petitioner sent comments on the State’s response. Both parties
submitted additional information on several occasions between then and May
of this year. On August 30, 1999, the State said that “it was not in a
position to begin a friendly settlement that did not conform to the spirit
of Law 838/96.”[1]
At its 110th session, the IACHR held a hearing at which the parties put
forward their points of view regarding the admissibility of this petition.

III.POSITIONS OF THE PARTIES

A.Petitioner

3.The petitioner claims that during the second half of the 1970s and
throughout the 1980s, Mr. Aníbal Miranda published several books dealing
with crimes committed by the Alfredo Stroessner dictatorship; on several
occasions he also denounced other aspects of that situation, and these
allegations were covered in the press in Paraguay and in other countries.

4.As a result of this, he claims, Mr. Miranda was harassed by the
police and the military, beginning with an army intelligence report drawn
up in July 1976. He reports that one aspect of this harassment was the
December 1980 break-in at Mr. Miranda’s home by a group of police
officers and soldiers; his passport was confiscated by the Department of
Identifications; in November 1988 he was kidnapped from a public
thoroughfare and, although no judicial order had been issued against him,
he was sent to prison, where he was tortured, kept in isolation, and
denied visits by relatives and lawyers.

5.He reports that following those violations, Mr. Miranda attempted
to bring criminal action to punish the perpetrators; he also filed suit
against the Paraguayan State in a bid to secure compensation for the harm
he had suffered as a result of the human rights violations committed by
the State’s agents.

6.Regarding the criminal action filed by the alleged victim, the
petitioner states that in March 1989, Mr. Miranda filed criminal
proceedings against Sabino A. Montanaro (then Paraguay’s Interior
Minister), Alcibiades Britez Borges (then the capital’s Chief of
Police), and others, for illegal arrest, kidnapping, torture, and abuse of
authority.[2]
In reprisal, two criminal committal proceedings were opened against him
and a warrant was issued for his arrest; subsequently, Judge Nelson A.
Mora initiated a third committal criminal proceeding, as a result of which
Mr. Miranda was kept under arrest from March through July 1991. Both the
aforesaid criminal suit and a complaint that Mr. Miranda later filed
against Judge Nelson A. Mora before the Magistrates Disciplinary Board
were unsuccessful; instead, a series of obstacles and substitutions
paralyzed those proceedings, including the exclusion of Mr. Miranda from
the trial of Sabino A. Montanaro and others. The petitioner also reports
that none of the persons against whom Mr. Miranda brought criminal charges
were arrested: Sabino A. Montanaro did not appear before the court because
he was in exile in Honduras, and Alcibiades Britez Borges did not face
trial.

7.With regard to the suit filed against the Paraguayan State to
secure compensation for the harm suffered by Mr. Miranda as a result of
the alleged human rights violations, the petitioner claims that in May
1997 Mr. Miranda filed suit against the Paraguayan State for damages
arising from the violation of his rights; these proceedings have not yet
been resolved, and the petitioner claims that the State has adopted a
strategy of systematically obstructing Mr. Miranda’s claims for
compensation.

B.State

8.In its reply of October 16, 1998, the State included a copy of a
report by the Ministry of Justice and Labor. This report indicates that:

From
the report of the Public Prosecution Service, Office of the Attorney
General of the State, Department of Human Rights, drawn up by Prosecutor
Lourdes Acevedo Acosta on September 15 of this year, the dossier titled
“Sabino Augusto Montanaro and Aurelio Cáceres Spelt in Abuse of
Authority and Illegal Arrest” at the 6th Criminal Court, 11th
Secretariat, has as its latest development A.I. No. 1347 of July 3, 1997,
the resolutive part of which reads as follows: ‘(1) To disallow the
extension of the committal proceedings. (2) To annul the proceedings
reported in the case file.’ The case is not currently lodged with the
Court.

9.The State added that, in accordance with the above, “in the case
referred to in this petition, the remedies provided by domestic
jurisdiction have not been exhausted,” and it listed a number of
provisions contained in Paraguayan law.

10.Later, on April 25, 2001, the State informed the Commission that
although Mr. Miranda was no longer an instigator in the criminal
proceedings against Sabino Montanaro and others, following the withdrawal
motion presented in favor of one of the defendants, the judge had decided
that:

In
consideration of the nature of the matter under investigation, which is a
criminal action, publicly prosecutable on an ex officio basis, and in
compliance with the provisions of Articles 16 (paragraph 1), 17, and 20 of
the relevant criminal law; it should be pursued at the initiative of the
Public Prosecution Service.

11.On August 30, 1999, the State submitted a document to the IACHR, in
which it said:

It
should be noted that there were many cases of human rights violations
under the dictatorship (1954 to 1989), and the State’s position on the
matter is that compensation given to the victims or their families should
observe equitable guidelines to ensure that new injustices are not
committed as we repair the harm caused by those violations.

In
this regard, the Government holds that one valid instrument for that
purpose is Law 838/96 of September 12, 1996, which “compensates the
victims of human rights violations during the 1954-1989 dictatorship”;
this law benefits individuals of any nationality who, under the
dictatorship in power in Paraguay during the period indicated, had their
human rights to life, personal integrity, or freedom violated by
officials, employees, or agents of the State.

As
the Commission already knows, although Law 838 is in force, it is not
applicable because we do not have a People’s Defender who, in accordance
with the law, would be the person responsible for examining compensation
claims. It should be noted that during the Commission’s recent on-site
visit, the authorities offered specific undertakings toward ensuring the
promptest appointment of a People’s Defender. (…)

In
this case, as in all the other cases involving human rights violations
committed by the dictatorship, the material reparations and other forms of
compensation are provided for by Law 838. The State is therefore not in a
position to begin a friendly settlement that does not conform to the
spirit of the aforesaid law which, using notions of equity, is an attempt
to offer historic amends to the dictatorship’s victims.

12.The petitioners are entitled, under Article 44 of the American
Convention, to lodge complaints with the IACHR. The petition names, as its
alleged victims, individual persons with respect to whom Paraguay had
assumed the commitment of respecting and ensuring the rights enshrined in
the American Convention. As regards the State, the Commission notes that
Paraguay has been a party to the American Convention since August 24,
1989, when it deposited the corresponding instrument of ratification. The
Commission therefore has competence ratione
personae to examine the complaint.

13.The Commission has competence ratione
loci to hear the petition, since it alleges violations of rights
protected by the American Declaration and the American Convention
occurring within the territory of a state party thereto.

14.The Commission has competence ratione
temporis, since the obligation of respecting and ensuring the rights
protected by the American Declaration and the American Convention was
already in force for the State on the date on which the incidents
described in the petition allegedly occurred. The Commission points out
that some of the alleged violations of Mr. Miranda’s human rights began
prior to August 24, 1989, the date on which Paraguay ratified the American
Convention; as a result, the source of law applicable thereto is the
American Declaration. Both the Court and the Commission have ruled that
the American Declaration is a source of international obligations for OAS
member states.[3]
The violations of Mr. Miranda’s right to a fair trial and right to
judicial protection, which allegedly occurred during the legal proceedings
he initiated in May 1997, must be analyzed in accordance with the American
Convention. Finally, with respect to the violations of the right to a fair
trial and the right to judicial protection that allegedly occurred during
the proceedings initiated by Mr. Miranda in March 1989—before
Paraguay’s ratification of the American Convention in August of that
year—the IACHR recently confirmed “its practice of extending the scope
of application of the American Convention to facts of a continuing nature
that violate human rights prior to its ratification, but whose effects
remain after its entry into force.”[4]Similarly, the Commission has ruled that “once the American
Convention entered into force (...) the Convention and not the Declaration
became the source of legal norms for application by the Commission insofar
as the petition alleges violations of substantially identical rights set
forth in both instruments and those claimed violations do not involve a
continuing situation.”[5]

15.Finally, the Commission has competence ratione
materiae, since the petition describes violations of human rights
protected by the American Declaration and by the American Convention.

16.The Commission will now proceed to analyze whether the case at hand
meets the requirements for admissibility set by Articles 46 and 47 of the
American Convention.[6]

B.Admissibility Requirements

a.Exhaustion of Domestic Remedies

17.The Commission notes that following the alleged violations suffered
by Mr. Miranda, he initiated criminal proceedings under Paraguayan
jurisdiction with the aim of ensuring that the perpetrators were punished;
he also sued the Paraguayan State for compensation for the harm he
suffered as a result of those violations of his human rights.

18.In an attempt to determine criminal responsibilities for the human
rights violations he had suffered, in March 1989 Mr. Miranda initiated
criminal proceedings against Sabino A. Montanaro (then Minister of the
Interior), Alcibiades Britez Borges (then Chief of Police in the capital),
and others, for illegal arrest, kidnapping, torture, and abuse of
authority. With regard to these proceedings, the Paraguayan State at first
maintained that the remedies provided by domestic jurisdiction had not
been exhausted. Later, the State claimed that within that same suit, Mr.
Miranda had requested that the criminal committal proceedings be expanded
to include former President Alfredo Stroessner. In formulating that
request, Mr. Miranda withdrew the suit lodged against one of the several
defendants, Aurelio Cáceres Spelt,
and that withdrawal benefited the remaining defendants through the
application of Article 123 of the adjective criminal code. In a final note
sent to the Commission in response to a request for information regarding
the competence of the Public Prosecution Service and about whether steps
had been taken in connection with the extradition of Alfredo Stroessner,
the Paraguayan State said that:

Even
though the private citizen has withdrawn, the publicly prosecutable
criminal actions are still being pursued on an ex officio basis by the
Public Prosecution Service.

The
Public Prosecution Service is legally obliged to conduct investigations
into publicly prosecutable criminal acts, and this has been the case in
these proceedings, during which it has requested that certain steps be
taken. (…)

With
regard to the endeavors of the Public Prosecution Service, the Attorney
General of the State ordered the Court to take a series of steps, which
have not yet been carried out. (…)

Alfredo
Stroessner is not included in these proceedings, although there are others
in which he does feature.

19.The Commission notes that Article 46(2)(a) of the American
Convention provides that the requirement of exhausting the remedies
provided by domestic jurisdiction shall not apply when “there has been
unwarranted delay in rendering a final judgment under the aforementioned
remedies.”

20.Under that provision, and noting that more than twelve years have
gone by since the criminal proceedings were initiated and not even a
first-instance sentence has been handed down, the Commission holds that in
the case at hand, the aforesaid exception to the requirement of exhausting
domestic remedies is applicable. This decision is further based on the
Public Prosecution Service’s legal obligation of pursuing the
investigation of publicly prosecutable crimes, even when the original
complainant has withdrawn.

21.Regarding the suit Mr. Miranda filed in May 1997 in an attempt to
secure compensation from the Paraguayan State for the violations of his
human rights, the Commission notes that pursuant to the State’s claims
of August 30, 1999, (paragraph 11, above), the appropriate resource
available to Mr. Miranda for obtaining reparations would be the mechanism
set forth in Law 838/96. Under that law, claims for compensation by
persons who “had their human rights to life, personal integrity, or
freedom violated by officials, employees, or agents of the State” during
“the dictatorship in power in Paraguay between 1954 and 1989” must be
lodged with the People’s Defender.

22.Although the office of the People’s Defender was created by the
1992 Paraguayan Constitution, the holder of the office has not yet been
selected by the Paraguayan Congress. The Commission consequently notes
that Mr. Miranda has not enjoyed access to the ideal means for submitting
his claim.

23.The Commission believes that this also constitutes an exception to
the prior exhaustion requirement: as indicated by Article 46(2)(a) and (b)
of the American Convention, this requirement does not apply when
“domestic legislation (...) does not afford due process of law for the
protection of the right or rights that have allegedly been violated” and
when “the party alleging violation of his rights has been denied access
to the remedies under domestic law or has been prevented from exhausting
them.” However, through its courts, the Paraguayan State has been
pursuing ordinary civil proceedings to resolve the compensation claim
filed by Mr. Miranda; with this, in principle, the State would appear to
have provided the petitioner with an alternative mechanism to the one
established by Law 838/96.

24. However, the legal channels to which the alleged victim turned
as a result of the real absence of the specific and effective mechanism
provided for under Paraguayan law cannot be considered an ideal or
efficient alternative for pursuing the goals sought by Mr. Miranda since,
after four years, the court in question has not even handed down a
first-instance ruling.

b.Timeliness of the Petition

25.As regards the requirement set forth in Article 46(1)(b) of the
Convention—that a petition be lodged within a period of six months from
the date on which the alleged victim was notified of the final judgment
exhausting domestic remedies—the Commission notes that this provision is
not applicable in the instant case; this is because if the exception to
the prior exhaustion rule is admissible, as is indicated in the preceding
paragraphs, then, pursuant to Article 46(2) of the Convention, an
exception also applies to the requirement of timely filing. Under Article
32(2) of the IACHR’s Rules of Procedure, in cases in which the
exceptions to the prior exhaustion requirement are applicable, the
petition must be presented within what the Commission deems to be a
reasonable period of time. In this specific situation, the Commission
takes into consideration the date on which the alleged violations
occurred, the context within which they took place, and the procedural
steps taken by the petitioner, and it concludes that the petition was
lodged within a reasonable delay.

c.Duplication of Procedures

26.The Commission understands that the substance of the petition is
not pending before any other international agency and that it has not been
previously studied by the Commission or any other international body.
Hence, the requirements set forth in Articles 46(1)(c) and 47(d) of the
Convention have been met.

d.Characterization of the Alleged Facts

27.The Commission believes that the petitioners’ claims describe
incidents that, if true, could tend to establish a violation of rights
enshrined in the American Declaration and American Convention.

V.CONCLUSIONS

28.The Commission believes that it is competent to hear this case and
that under Articles 46 and 47 of the American Convention, the petition is
admissible, in the terms outlined above.

29.Based on the foregoing considerations of fact and law, and without
prejudging the substance of the case,

THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,

DECIDES:

1.To declare this case admissible as regards the alleged violations
of Articles I, XVIII, XXV, and XXVI of the American Declaration of the
Rights and Duties of Man and the alleged violations of Articles 8 and 25
of the American Convention.

2.To give notice of this decision to the alleged victim, to the
petitioner, and to the State; and,

3.To publish this decision and to include it in its Annual Report to
the General Assembly of the OAS.

Done
and signed at the headquarters of the Inter-American Commission on Human
Rights on the tenth day of October, 2001. (Signed): Claudio Grossman,
President; Juan Méndez, First Vice-President; Marta Altolaguirre, Second
Vice-President; Commissioners Robert K. Goldman, Peter Laurie, and Julio
Prado Vallejo.

[1]
The Paraguayan State did not enact amnesty laws; instead, in 1986, it
promulgated Law Nº 838. This law provides that no statute of
limitations shall apply to crimes against human rights committed under
the Stroessner dictatorship, and it also stipulates that reparations
for those violations shall be determined by an administrative
procedure conducted before the People’s Defender (Paraguay’s
ombudsman).

[2]
On August 30, 1999, the State said that these proceedings were being
processed by the 6th Criminal Court, Secretariat 11.